Friday, July 4, 2014

Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision

Five votes. Five Catholics. Five men. One decision. Potentially millions of American women denied contraceptive coverage. This what the recent Hobby Lobby decision is about, but it also reveals three deeper problems–the sexism pervading the current Supreme Court along with its religious parochialism, a serious problem with the role that religion has come to occupy in American society, and the elevation of corporate rights and power that is strangling American society. Burwell v. Hobby Lobby tested the constitutionality of a requirement of the ACA that employer health care insurance include coverage for contraception. Owners of a corporation named Hobby Lobby contended that such a mandate violated their free exercise rights protected under both the First Amendment and the Religious Freedom Restoration Act (RFRA). In agreeing with the owners, the Supreme Court in a 5-4 decision made several leaps of logic. First, the majority opinion looked to the text of RFRA. The law states that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The first question was whether the law’s reference to “person” also included corporations. The Court said yes. It did that by making two arguments. One was to ask how a dictionary defined the word. Employing the federal Dictionary Act as its guide the Court found that it defined person to include among other entities, corporations, companies, and partnerships. The Court then asked whether there was any indication that in passing RFRA Congress intended to define person, other than found in the Act, to exclude corporations. Finding no indication of that the Court said that RFRA protected the religious rights of corporations such as Hobby Lobby. Moreover, to the objection that corporations cannot exercise religion the Court responded by declaring “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.” Second, the Court argued that creating a religious exemption under RFRA for a corporation had already occurred under the ACA when Congress exempted religious non-profits from the contraception mandate. Thus, given that there was no indication that Congress meant to exclude corporations from RFRA protection and that non-profits already were exempted from insurance mandate, this was enough for five Justices to rule in favor of Hobby Lobby. So think first about the sexism of the decision. Five male Justices rule that it is ok for an employer to deny women contraceptive coverage. Employers should not be making this decision–by this decision employer preferences are counted twice–employers get a vote about what they want to cover and their choice gets to trump that of women. This is bad enough. But the sexism is even worse–it is about not getting a clue. Contraceptives are not just about birth control–they are about women’s health. Many of the drugs used to prevent pregnancies also address other women’s health issues. I doubt the Justices understand this (even if they care). One wonders how they will feel about companies that will refuse contraceptive care but pay for Viagra. But the sexism is compounded by the Catholicism and religiosity of their votes. All five guys in the majority are Catholics. The Catholic Church opposes not just abortion but birth control. These five Justices seemed simply to vote the sexist Catholic party line in their decision. But taken further, the law at the basis of their decision–the Religious Freedom Restoration Action–appears to constitutionalize a religious veto into the law. The law, and the Hobby Lobby decision, appear to be so solicitous to religion that one can argue that both have established religion into the law. When the First Amendment was written it declared that “Congress shall make no law establishing a religion.” But RFRA and the five Justice majority appear to have done that. We need protection from the Court establishing its views of religion into the law. While it may be a subject for another column, a good argument can also be made that RFRA might itself violate the Establishment clause. Finally, Hobby Lobby adds a another dimension to corporate rights and personhood that connects back to Citizens United. The Roberts Court seems consistently willing to privilege employers and corporations over that of workers and individuals. Here, when the rights of corporate owners clashed with female workers it was the former who won. More than 30 years ago political scientist Charles Lindblom contended that it was impossible to reconcile corporate power with democracy. He was correct. The powers given to property and corporations under the Roberts Court come at the expense of American democracy. It is a failure to recognize that democracy needs to be protected from capitalism and the ability of those with money to convert their resources into political power. Hobby Lobby is just another example of how some have confused the economic and political marketplaces.

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About Me

Professor in the political science department at Hamline University where he teaches classes in American politics, public policy and administration, and ethics.
Schultz holds an appointment at the University of Minnesota law school and teaches election law, state constitutional law, and professional responsibility.
He has authored/edited 30 books, 12 legal treatises, and more than 100 articles on topics including civil service reform, election law, eminent domain, constitutional law, public policy, legal and political theory, and the media and politics.
In addition to 25+ years teaching, he has worked in government as a director of code enforcement and for a community action agency as an economic and housing planner.